20 F. 205 | U.S. Circuit Court for the District of Massachusetts | 1884
I adhere to a remark which I made incidentally in The Mary Patten, 2 Low. 196, 199, that the general rulo, so far as there can be one, should, in tho absence of particular circumstances, give a libelant in a cause of collision his costs, though he recover hut half his damages, where the loss is all on one side. Such has been the practice in the first and second circuits of late years. The Austin, 3 Ben. 11; The Baltic, Id. 195; The Paterson, Id. 299; The City of Hartford, 7 Ben. 510; The William Cox, 3 Fed. Rep. 645; The Excelsior, 12 Fed. Rep. 195; The Eleonora, 17 Blatchf. 88; The Mary Patten, 2 Low. 196, 199. This practice is approved in a considered dictum of Strong, J., in the supreme court, where he says: “Doubtless they [costs] generally follow tho decree, but circumstances of equity, of hardship, of oppression, or of negligence, induce the court to depart from the rule in a great variety of cases.” The Sapphire, 18 Wall. 51, 57. That dictum states the law of admiralty and of equity as well as it has ever been stated. In the third circuit, the practice is to divide costs as well as damages, where but one party has suffered, as well as in the more common case of loss on both sides, when the practice in all three circuits is to divide costs as well as damages. See The Pennsylvania, 15 Fed. Rep. 814. Judge Butler, in that case, relies very much on the form of decree in ’The America, 92 U. S. 432, 438, made in 1875, which, he thinks, should have more weight than the remarks of Strong, J., in The Sapphire, supra. I cannot see the two cases in that light. Mr. Justice Strong was speaking deliberately upon a point which had been argued; and Mr. Justice Clifeop.d simply entered a decree in the usual form, and
Two libels were filed against the steamer Hercules for the total loss-of the schooner and her cargo, by the respective owners of each; both vessels were found to be in fault. The claimants now ask that, from the damages which would otherwise be due the owners of the schooner,, they should be permitted to deduct or recoup one-half the value of the cargo, because each party is liable for that loss, according to The Atlas, 93 U. S. 302. A recoupment of this sort has been allowed in several eases. See The Eleonora, supra; Leonard v. Whitwill, 10 Ben. 638; The C. H. Foster, 1 Fed. Rep. 733; In re Leonard, 14 Fed. Rep. 53; Atlantic Ins. Co. v. Alexandre, 16 Fed. Rep. 279; The Canima, 17 Fed. Rep. 271. That one vessel was wholly lost, does not prevent a contribution in case of mutual fault. The North Star, 106 U. S. 17; S. C. 1 Sup. Ct. Rep. 41. It is true that the question whether the schooner is excused from liability to the owners of the-cargo shipped on board of her, has not been brought into the case;, and therefore, if there is any ground for relieving the owners of this-liability, they may show it by supplementary proceedings in the cause. If they shall make no move in that direction within 30 days, the decree will be that the claimants have the right to recoup from the damage found against them, and in behalf of the owners of the sphooner,, one-half of the amount found due the owners of the cargo.